Who Owns the First Amendment?

The Freedom of Information Act (FOIA, pronounced “foy-ah”) is one of the most important weapons in the reporter’s arsenal. Essentially, and with lots of exceptions and exclusions, it requires the government to supply documents on request. Journalism schools offer courses on how to file a FOIA request. Many exposés of official misbehavior would be impossible without FOIA. It’s almost like a subpoena power for journalists. It’s also a tremendous burden on government agencies—and some of its biggest users are not journalists but companies trolling for commercial information about their rivals.

California’s state version of FOIA is called the Public Records Act. Last fall, for reasons too boring to go into, an aide to State Attorney General (and once and possibly future governor) Jerry Brown covertly taped and transcribed a conversation with a reporter. (Taping phone conversations without the consent of everyone on the call is supposed to be illegal in California.) Several California papers requested this transcript as well as those of any other covertly taped phone conversations between journalists and the state attorney general’s office. The results included four interviews with Brown himself. Brown always “gives good quote,” as they say, and the dean of the Sacramento press corps, George Skelton of the Los Angeles Times, got a nice juicy column out of the transcripts. Nevertheless, he admitted,

it still makes me cringe. The public records act seems to be running amok when a reporter’s private interview with a public figure can be handed over to competitors … I’m no lawyer, but it seems to me that a reporter’s interview with a government official is not public business. It’s not like awarding contracts, appointing cronies or appeasing contributors.

Actually, it’s very much like all those things. An interview is a commercial transaction in which the reporter and the source each hope to gain something. Such exchanges rarely amount to anything illicit, but most FOIA requests, on all subjects, are dry holes. And many FOIA requests offend people’s sense of privacy or give succor to their enemies, rivals, or competitors. Now, Skelton knows how it feels, and he’s honest enough to say that he doesn’t like it (though in this case he benefited from it). But he never felt the law had “run amok” until it intruded (at least potentially) on his own commercial privacy.

For people whose job it is to describe the world, journalists often seem to have remarkable difficulty imagining life in other people’s shoes. Take the recent Supreme Court case of Citizens United v. Federal Election Commission. Reversing an earlier decision, the Court ruled that corporations have a First Amendment right of free speech, and cannot be forbidden to spend their own money expressing political views. Essentially, the decision gutted the McCain-Feingold campaign-finance reforms of 2002. “Independent expenditures” by individual citizens have been protected by the First Amendment since the Court’s Buckley v. Valeo decision in 1976. But until the Citizens United case, a ban or limit on such expenditures by corporations was thought to be legal. Moderate, responsible opinion makers, including most of the nation’s leading editorial pages and probably most of its professional journalists, deplored the rulings in Buckley and Citizens United on the grounds that “money isn’t speech.” Even President Obama spoke out against Citizens. Buckley was bad enough, freeing rich egomaniacs to spend their own money without limit in favor of some cause or candidate or their own quixotic campaigns for office. Citizens United now raises the specter of corporations flooding politics with money in pursuit of a corporate agenda of reckless deregulation, disregard for the environment, and, as always, lower taxes on capital.

These risks are real. Unfortunately, we are stuck with these few unhappy consequences of the First Amendment, just as we are stuck with the many unhappy consequences of the Second Amendment. And we should take the Constitution seriously—especially the parts we don’t like. Money is speech. The Supreme Court has always allowed limits on contributions to political campaigns, reasoning in part that the purpose of a contribution is not fundamentally to send a message. But the purpose of an independent expenditure of your own money to promote a candidate or cause is to send a message. And it’s axiomatic that the government can’t limit a message based on its content. It can limit the use of loudspeakers in the park after 10 p.m. so that neighbors can sleep, but it can’t limit the use of loudspeakers by Republicans because it doesn’t like what they have to say, and it can’t limit the use of loudspeakers by pols in order to prevent the messages of people with bigger loudspeakers from enjoying an unfair advantage.

As Justice Kennedy’s majority opinion points out, the overturned law forbidding corporate expenditures had an exemption for media corporations. If it hadn’t had one, the government would have been allowed to pass a law, say, limiting the amount a corporation could spend putting out a newspaper, in order to “level the playing field” between newspapers of differing points of view. A Republican Congress, for example, could decide that The Washington Post is too influential compared with The Washington Times, and require The Post to cut its budget (a superfluous requirement these days, perhaps). Most journalists would have no trouble correctly finding that in this case, money is speech after all.

As Kennedy further notes, if the law hadn’t been overturned, courts would have had to decide what is and isn’t a media corporation. A conglomerate with a couple of radio stations? And who is and is not a journalist? Kennedy observes with unseemly relish,

With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.

Rub it in, why don’t you?

More to the point, even if you could successfully draw that line between journalists and everybody else, why should you? Journalists’ special pleading is one reason we are so unpopular.

A final example concerns that hoary subject: anonymous sources. Like FOIA, anonymous sources are vital to journalists’ task of monitoring the behavior of government and powerful private institutions. Many journalists believe passionately that a “journalist’s privilege”—like the privileges for spouses, ministers, lawyers, and so on—should protect them from having to reveal the identity of their sources in criminal trials and other circumstances where nonjournalists must talk or risk punishment. Many journalists, in fact, believe that such a right is already part of the First Amendment, if only judges would recognize it. The Supreme Court has turned down opportunities to recognize such a right (which would be a right not to speak, in contrast with the First Amendment’s usual concern with a right to speak), but most states have enacted “shield” laws allowing journalists to protect their sources to one degree or another.

You cannot deny the sincerity or seriousness of journalists on this issue. Many—most notably Judith Miller of The New York Times—have gone to jail rather than break a promise of anonymity to a source. But you also cannot deny the arrogance of the absolutism here. The question is not whether journalists should be forced to break promises to anonymous sources. The question is whether they should have made these promises in the first place, and whether sometimes they should be happy to break them. The whole saga (which also involved other journalists: Matthew Cooper of Time, the late Robert Novak, and so on) concerned the “outing” of a CIA agent, Valerie Plame. (It’s all coming back now. Right?) The CIA also has its secrets—legitimate secrets. Do the legitimate secrets of The New York Times always trump the legitimate secrets of the CIA? And why do reporters continue to owe protection to sources who turn out to be lying, or to be part of an official disinformation campaign rather than brave dissidents?

And does the press always get to decide whose secrets trump? What bothers me most about the cult of the source is the press’s insistence on its right to ignore due process of law and refuse to reveal sources even after the issue has been fully litigated. Fine: appeal it up to the Supreme Court if you want, but in a democracy with an (all but) uncorrupted judiciary, if you ultimately lose, you should obey the law as it is, not as you would like it to be. Especially if you are concurrently publishing editorials urging this course on the president of the United States (as The Times and other publications were doing about George W. Bush during Plamegate).

When the press demands or assumes special privileges, we are forced back to the question of who is the press, and to Justice Kennedy’s puckish point that the Internet is making this distinction harder. The Senate Judiciary Committee has passed a national shield law that is not absolutist. It lists various circumstances in which the reporter’s privilege will not be recognized, such as preventing “destruction of critical infrastructure.” And it defines a journalist with elegant simplicity as a person who has the intent to disseminate information to the public. This definition is good, though you have to wonder who would not qualify for the privilege under its terms. Federal courts may soon be flooded with witnesses who are bloggers from mymafia.com. And then there is the question of why any journalist who is also a citizen and a human being would even want to keep secret the identity of someone who is planning to destroy critical infrastructure.

Michael Kinsley is a longtime political journalist and commentator. He has an accomplished record in print, television, and online. He graduated from Harvard, went to Oxford on a Rhodes Scholarship, and came back to study at Harvard Law. While in his third year of law school, Kinsley began working at The New Republic. He was named editor and wrote that magazine's famous TRB column for most of the 1980s and 1990s. He also served as editor at Harper's, managing editor of Washington Monthly, and American editor of The Economist. Kinsley was a panelist on CNN's "Crossfire" from 1989 to 1995. In the mid-1990s, Kinsley started working for Microsoft and became the founding editor of the company's online journal, Slate. He worked as a senior writer and columnist at The Atlantic and The Atlantic Wire in 2010. In 1999, the Columbia Journalism Review named him Editor of the Year, and in 2010 he was inducted into the American Society of Magazine Editors Hall of Fame. He is famous for defining a gaffe as the moment when a politician tells the truth.